The story begins with a discovery that the permit under which Nestle's Arrowhead Water has been collecting water in the San Bernardino National Forest expired in 1988. LOL, oops. Environmental and other Leftish sites are calling for Nestle's head and somehow blaming Nestle for this.

As a permittee with the US Forest Service (USFS) in California and across the country, I can guess with pretty high confidence exactly what happened here. For years I was head of a trade group of recreation concessionaires (think lodges and guides and such) who do business in the USFS under permit. Most of these were located in California. For years, the biggest problem we have had with the USFS in California is that they are years and years behind in nearly all their permit renewals. There are literally hundreds of expired permit in the USFS in California alone.

For reasons that probably go to bureaucratic incentives, despite the Forest Service's huge budget, they are loath to allocate resources to renewing these permits -- they want to fill their organization with biologists and archaeologists and arborists, not contracts people. Making the situation worse, Forest Service and other Federal rules have burdened the permit renewal process with so many legal requirements that each one, even if trivial in size and impact, is absurdly time-consuming to complete.

This is not a new situation -- it has obtained for years. Almost five years ago I met personally with the Chief of the Forest Service in DC and begged for more resources to be assigned to permit renewals, but to no avail. I did the same in a meeting barely a month ago with the head of the USFS's Region 5 (basically California). All of us permittees have been vociferously complaining about this for years.

When you look at these situations, then, what you will see is not some evil private business trying to get over on the public, but a business that is literally screaming in frustration, year in and year out, begging the US Forest Service to address its permit renewal. Generally, local Forest Service staff will give the company verbal assurances that they should keep operating, so they do, continuing to pay their fees and operate within the guidelines of the old, expired contract.

I would be willing to bet a fair amount of money that this is exactly what happened to Nestle.

Environmentalists seem to obsessively hate bottled water, but ignore what a trivial, trivial percentage of total water use is bottled.

Critics are accusing Nestle of making obscene profits on Sacramento tap water. But if they really think the spread between tap water and bottled water is too large, isn't the real issue that Sacramento is under-pricing its tap water? After all, Nestle is paying what everyone else in the town is paying for water.

Environmentalists have a misguided fetish for local foods, often ignoring that transportation costs and energy are a tiny percentage of most food production costs (a percentage small enough to be dwarfed by differential productivity of soils and climates). But here, all they can possibly accomplish is to chase Nestle's bottling plant out of California and then have the water trucked back into the state. This might be a net gain depending on the differential value of California water vs. fuel, but we can't know that because California water pricing is so screwed up.

My company has been sued a few times for slip and fall type stuff but I have never in my life been the plaintiff in a legal action. As is perhaps appropriate given my political leanings, my first ever suit was against the the Federal government, specifically against the Forest Service seeking an injunction against their closure of the campgrounds we operate in the recent shutdown.

Unfortunately, the case reached the court on the day the shutdown lifted, but the judge was still very helpful in giving the Forest Service a swift kick in the butt to hurry them along so they didn't drag their feet reopening us.,

I had feared that we would lose the opportunity to set a precedent. Since the shutdown was over I though the Court might consider this issue moot. But apparently one can continue with such litigation to set a precedent if there is reason to think the circumstances will recur. And the government attorney was kind enough to make a statement right in the court transcript (granted in context of a different argument) that this same shutdown situation is likely to reoccur as soon as early next year.

The good news is that we appear to have an argument that the Court is willing to entertain. In fact, the statement below was a statement by the judge in the hearing (it's from the hearing transcript and Q&A with the government attorney and not from any official opinion). It is not in any way binding but it gives us some confidence to try to proceed to get a ruling on the legality of our closure now, so we have it in our pocket for next time. Here is the Court's statement, addressing the government attorney:

Well, the basic problem is that the Forest Service never should have closed these that were permitted properties. And they in fact violated the agreement they had with these plaintiffs in doing so without necessity and determining they had a right to do so, which I don't think they did....

[the Forest Service has] nothing to do with the administration and management of the campgrounds other than the inspections at any given time.

So, what they have done is unreasonably close these parks, preventing the concessioners who pay a premium in order to get this permit and lease the property under the requirements in this permit -- and the Forest Service was very ill-advised to make the decision to close these grounds under these circumstances, where you have given up the maintenance and administration of these campsites.

I understand the overall obligation for public safety, but you have delegated that to private entities. And you took it away when it wasn't costing you a dollar to leave it as was. And in fact, that's where we get into the restraint of trade and the fact that there are losses which are most likely uncompensatable.

By the way the case was National Forest Recreation Association et. al. vs. Tom Tidwell. My company, among others, was al.

Well, here is a photo from yesterday of the parking lot of one of the recreation areas we operate and were forced to closed. Doesn't look very closed, does it?

As it turns out, yesterday the local Sheriff was concerned with traffic jams on the highway near here as people tried to park and walk in. It is a danger I warned the US Forest Service about way back on October 2 in a letter to Cal Joyner, the Regional Forester for Arizona and New Mexico (and was promptly ignored). The Sheriff forced the gate open and let everyone in.

The amazing thing I found out today, and confirmed through pictures and news reports, is that the Sheriff was accompanied by US Forest Service personnel who apparently accepted this action. This means in effect that the US Forest Service believes this site is safe to occupy by visitors without our company present to clean the bathrooms, take out the trash, monitor security, watch for fires, stop vandalism, etc. but is not safe, somehow, with us present and actively staffing the site. This obviously makes no sense and just points out how arbitrary the decision-making has been.

Starting yesterday morning I begged the US Forest Service to let us return to staffing the site (which should be an easy decision since, unlike opening National Parks, this would require zero dollars from the government) but I got no response.

We have also found numerous other sites operated by third parties like ourselves on US Forest Service land in Arizona still open. For example, the Oak Flats campground in the Tonto National Forest is still open for business. In addition, we know of at least three Arizona State Parks, including Slide Rock SP, that operate on US Forest Service land just as we do but who have not been ordered to close. I know that Fool Hollow SP operates with a special use permit very similar to ours, but unlike us, its permit has not been temporarily suspended and it is open for business.

In fact, I cannot find a single third party who operates on the National Forests in Arizona who have had their operations suspended except for the private campground concessionaires. The powerful ski associations got their operations on Forest Service lands exempted from the get-go, probably because they have a full-time lobbying staff in DC and I do not. The same goes true for BLM lands, where the BLM has not closed its campgrounds or parks to the public. And the same goes true now for the Grand Canyon NP, which has been reopened by the state of Arizona. In fact, we may be the only recreation operations on Federal land in this state that are still required to close.

Update: The Forest Service made us cease operations at the Locket Meadow campground near Flagstaff. After kicking us out, they have reopened the campground to the public (without any staff or services on site). It is absolutely outrageous that the US Forest Service believes that the campground is fine for public visitation but that our company must be banned from operating it. Clearly, the resource and the visitors are safer and better protected and better served with us there, so this can only mean that the Forest Service is for some reason arbitrarily targeting our business, rather than use of the land, for shutdown. I cannot think of any possible justification for this action. If the campground is safe for public visitation during the shutdown, it is safer for us to operate and keep clean and protected.

PS- I should say targeting private SMALL companies. Large companies with political pull seem to be getting the National Parks open where they have operations. Just like with Obamacare and nearly everything else in modern government, restrictions are passed on private enterprises but exceptions are granted to those large enough to have staff lawyers, full-time lobbyists, and who can bundle a lot of donations.

Many, many emails have encouraged me to disobey the order and keep the parks open for the public. There are three reasons why I have chosen not to do so.

1. Respect for Contract: In my 25 or so lease contracts with the US Forest Service (the USFS insists on calling them "special use permits" but legally they are essentially commercial leases), the contract language gives the Forest Supervisor of each Forest the right to suspend or terminate the contract for virtually any reason. Yeah, I know, this is a crappy lop-sided contract provision, but welcome to the world of working with the Federal government. So each Forest Supervisor has the right to suspend our lease. BUT....

Historically, the USFS has only rarely used this contract power, and its use has generally been in one of two situations: a) an emergency, such as a forest fire, that threatens a particular recreation area or b) a situation where the recreation area cannot physically be used, such as when it has been destroyed by fire or when it is being refurbished. Never, to my knowledge, has the USFS used this power to simultaneously close all concession operations, and in fact in past shutdowns like 1995 and 1996 most all concessionaires stayed open.

Budget considerations alone cannot justify the closure order, as USFS concessionaires do not use Federal funds and in fact pay money to the Treasury. Closing us actually reduces the income to the Treasury as we pay our concession fees as a percentage of revenues. Further, the USFS does not have any day-to-day administration responsibilities for these parks. The only semi-regular duty is sometimes to provide law enforcement backup, but USFS law enforcement officers are still at work (we know this because they showed up to post our operations as closed).

The Administrative Procedure Act makes it illegal for a government agency to make a decision that is arbitrary, capricious or an abuse of discretion. To this end, the USFS has not actually closed the Forests and still allows camping in the Forests. Thus, the USFS considers it safe for people to be camping in the Forests and that doing so during the shutdown creates no risk of resource or property damage. In contrast, the USFS has made the decision that it is not safe to allow camping in developed campsites run by private concessionaires. The decision that developed campgrounds run by private companies must close, but undeveloped camping can continue, makes no sense and is arbitrary, capricious and an abuse of discretion. If anything, closing developed areas but allowing dispersed camping increases risks to public safety and for resource damage as developed concession areas are staffed and trained to mitigate such risks (that's the whole point of having developed recreation in the first place).

While we feel good we have a winning argument, this is a complicated point that does not lend itself well to civil disobedience, but we are taking it to court and seeking an injunction to the closure.

2. The wrong people would go to jail. Civil disobedience has a long and honorable history in this country. But the honor of such an act would quickly go out the window if I were to commit an act of defiance but others would have to go to jail. We run over a hundred sites. Telling my people to remain open would simply lead to getting my employees thrown in jail for trusting me and following my instructions. That would be awful. Just as bad, we can see from examples in the National Park Service that such disobedience would potentially subject my customers to legal harassment. It's not brave or honorable for me to be defiant but to have others pay the cost.

3. I could lose everything. I don't want to seem weak-kneed here, but I would be dishonest not to also raise the small but critical point that I have almost every dollar I own tied up in this company, which does over half its business in the National Forest**. My retirement and all my savings are in this one basket. I would likely risk an arrest and a few hours in jail plus the price of bail and months of court appearances to make a point here. I am not ready to go all-in with everything I own, not when there are other legal avenues still available. If that makes me a wimp, so be it.

** you can be assured that the moment I have one minute of extra time we are going to be working on diversifying away from the US Forest Service as much as possible.

But there appears to be more to this story. There are several groups that operate parks on National Forest lands under agreements nearly identical to ours who appear to have been exempted from the closure order.

Large corporations that run ski resorts and certain other large resort properties on National Forest lands have been exempted. It should be noted that ski resorts operators, unlike campground operators, have full-time lobbyists stationed in Washington and can afford in-house staff lawyers to fight these kinds of orders. My guess is that knowing they would immediately get sued if they ordered larger private firms to close, the USFS focused only on smaller and more helpless private firms.

Many state parks, including at least 3 in Arizona and many in California, are actually on US Forest Service land and operate through special use permits almost identical to those we have with the USFS, yet none of these parks have been asked to close (Slide Rock and Fool Hollow State Park in Arizona and Burney Falls SP in California are just a few examples of state parks that operate on US Forest Service land).

In other words, the US Forest Service seems to be issuing closure orders inconsistently, targeting only private operators who are too small to fight back. The USFS has not been especially clear how they are justifying this order (perhaps since it can't be justified) but they have hinted that it is either because a) they can no longer "administer" these contracts, whatever that means since they have no day-to-day administration responsibilities or b) they are removing everyone from Federal lands. Note, though, that both explanation "a" or "b" would apply equally to ski resorts and state parks operating on Federal land leases which are not being closed.

I will also add that the USFS is continuing to allow individuals to hike and camp in non-developed areas of the forests. I have no problem with this -- there is no reason for the USFS to halt public access to public land just because their employees are getting a paid vacation. But this just highlights how crazy and inconsistent their policies are. People can camp in the National Forest everywhere except in developed campgrounds where private companies who take no Federal money normally have employees on site to clean up trash and provide security and prevent fires. Many campers take good care of the land but some do not, and driving these campers out of privately-operated developed sites into dispersed areas where their impact cannot be mitigated is just another way these actions increase rather than decrease costs.

Help! Administration Orders Shut Down of Privately-Operated Parks in National Forest

Parks that require no Federal money, and actually pay rent to the Treasury, are being required to close

Sirs:

My company, based in North Phoenix, operates over 100 US Forest Service campgrounds and day use areas under concession contract. Yesterday, as in all past government shutdowns, the Department of Agriculture and US Forest Service confirmed we would stay open during the government shutdown. This makes total sense, since our operations are self-sufficient (we are fully funded by user fees at the gate), we get no federal funds, we employ no government workers on these sites, and we actually pay rent into the Treasury.

However, today, we have been told by senior member of the US Forest Service and Department of Agriculture that people “above the department”, which I presume means the White House, plan to order the Forest Service to needlessly and illegally close all private operations. I can only assume their intention is to artificially increase the cost of the shutdown as some sort of political ploy.

The point of the shutdown is to close non-essential operations that require Federal money and manpower to stay open. So why is the White House closing private operations that require no government money to keep open and actually pay a percentage of their gate revenues back to the Treasury? We are a tenant of the US Forest Service, and a tenant does not have to close his business just because his landlord goes on a vacation.

I urge you to help stop the Administration from lawlessly taking arbitrary and illegal actions to artificially worsen the shutdown by hurting innocent hikers and campers. I am not asking you to restore any funding, because no funding is required to keep these operations open. I am asking that the Administration be required to only close government services that actually require budget resources.

First, you did not read the title wrong. A government shutdown means only about a third of the government actually shuts down. But the more amazing thing is that given multiple opportunities to name what we would lose if this one third goes away, all anyone can name is parks. This is from a Q&A by the Associated Press via Zero Hedge, which says we would lose parks and have some delays in new disability applications and, uh, we would lose parks.

About one-third of the government will shut down. About 800,000 of about 2.1 million federal employees will be sent home without pay. National parks will close.

NASA will continue to keep workers at Mission Control in Houston and elsewhere to support the International Space station, where two Americans and four other people live. Aside from that only about 3 percent of NASA's 18,000 workers will keep working.

The military and other agencies involving safety and security would continue to function. These include air traffic controllers, border patrol and law enforcement officers. Social Security, Medicare and veterans' benefits payments would continue, but there could be delays in processing new disability applications.

A partial shutdown that lasts no more than a few days wouldn't likely nick the economy much. But if the shutdown were to persist for two weeks or more, the economy would likely begin to slow, economists say.

Extended closures of national parks would hurt hotels, restaurants and other tourism-related businesses. Delays in processing visas for overseas visitors could interrupt trade. And the one-third of the federal workforce that lost pay would cut back on spending, thereby slowing growth.

So there you have it -- we lay off 800,000 government workers and the only two losses the AP can come up with is that national parks will close and those 800,000 people will have less to spend. Since the NPS employs about 22,000 people, this means that the other 778,000 have a contribution to the economy that consists mainly of drawing and then spending a salary?

I would love to see the government shutdown rules modified to add National Parks to the critical assets that remain open in a shutdown, since this seems the only thing anyone cares about. Then it would be fascinating to see how the downside of the shutdown would be spun. I can see the headlines now. "AP: Millions of TPS reports go unfiled".

Update: My company runs parks under concession contract in the National Forest and for other government agencies. In all previous shutdowns, we have remained open, since we pay money into the government budget rather than draw money out, and since the parks we operate employ no government workers. This time, though, we are starting to get notices we have to shut down too. This may be an attempt by the administration to artificially make the shutdown worse than it needs to be. I will update you as I learn more.

I was forwarded an email today, and I can't honestly figure out the source since it is one of those that has been forwarded a zillion times, but at some point it passed through the Arizona 2010 Project. It consisted mainly of pictures of desert areas along major immigration routes that had been trashed by illegal immigrants. This picture is pretty typical.

Certainly an ugly site, particularly for someone who lives and works in the outdoors as I do.

Here is a quote, I think from the original email but it may have been from one of the forwarders (emphasis added):

This layup is on an 'illegal super - highway' from Mexico to the USA (Tucson) used by human smugglers.

This layup area is located in a wash area approximately .5 of a mile long just south of Tucson.

We estimate there are over 3000 discarded back packs in this layup area. Countless water containers, food wrappers, clothing, and soiled baby diapers. And as you can see in this picture, fresh footprints leading right into it. We weren't too far behind them.

As I kept walking down the wash, I was sure it was going to end just ahead, but I kept walking and walking, and around every corner was more and more trash!

And of course the trail leading out of the layup area heading NORTH to Tucson, then on to your town tomorrow.

They've already come through here. Is this America the Beautiful? Or another landfill?

The trash left behind by the illegals is another of the Environmental Disasters to hit the USA. Had this been done in one of our great Northwest Forests or Seashore National Parks areas there would be an uprising of the American people........but this is remote Arizona-Mexican border.

Well, it so happens my life is spent cleaning up public parks. My company's mission is to privately operate public parks. A lot of that job is picking up and hauling away the trash. And I can tell you something with absolute certainty: This is exactly what a highly trafficked area in our great Northwest Forests or Seashore National Parks would look like if someone wasn't there to pick up. Here is one example from a northwest forest, in Oregon:

We run busy campgrounds and day use areas all over the country, and you would not believe the trash on the ground on a Monday morning. And this is after the place was cleaned on Sunday morning and with trash cans available every 10 feet to throw things away correctly. I have seen a few areas in the National Forest that were busy ad hoc camping areas -- meaning they had no facilities, no staff, and no trash cans -- and they were absolutely trashed by good old red-blooded American citizens. Parts looked no different than this picture. Most of these areas have since been closed, because of this ecological damage.

In fact, in my presentation I make to public agencies about our services, I say that we are actually in the environmental preservation business. By attracting recreators to defined areas of the wilderness where we have staff to clean up after the visitors and limit their impact on nature, we are helping to preserve the other 99% of the land.

All these people that come over, they could come with disease. There's no control, no health checks or anything. They check fruits and vegetables, how come they don't check people? No one talks about that! They're all dirty. I sent out 200 inmates into the desert, they picked up 18 tons of garbage that they bring in"”the baby diapers and all that. Where's everybody who wants to preserve the desert?"

To my mind, this is an argument against Mexican immigration in the same way that violence against women is used as an argument against legalizing prostitution. Prostitutes suffer abuse in large part because their profession is illegal which limits their access to the legal system when victimized, not because violence is inherent to their profession. Trash in a wash in the desert is a result of the illegality of immigration that forces people into stream beds rather than city check points when they enter the country.

Postscript #1: Please, if you are a good, clean, thoughtful user of public parks, do not write me thinking I have dissed you. I have not. Most of our visitors are great and thoughtful, and we really appreciate that. But it takes only a few to make an unbelievable mess.

Postscript #2: I am willing to believe that poorly educated immigrants have fewer litter taboos than we have been acculturated with. But I have seen enough to say that no ethnic group out there should be too smug. For God sakes, there had to be a large effort near the top of Mt. Everest to clean up a huge dump that had accumulated of oxygen bottles and other trash near the summit. Here are pictures of what rich Americans and Europeans do on Mt Everest when they are hiking and there is no trash can nearby:

This is welcome news for those of us who do business on US Forest Service lands, but pretty surprising coming from the 9th Circuit:

Judges aren't professional land managers.

The Ninth Circuit Court of Appeals acknowledged as much July 2, after
spending the past few years micromanaging the Forest Service in a
series of court decisions that forest industry groups called
"increasingly aberrant."

In a landmark ruling July 2, the Ninth acknowledged that it erred in
its interpretation of a key environmental law and botched Mineral
County's post-burn case.

"We misconstrued what the NFMA (National Forest Management Act)
requires of the Forest Service," a panel of 11 judges admitted in a
ruling released July 2. "We made three key errors in [the post-burn
case]...Today, we correct those errors."

The
ruling in "Lands Council v. McNair," involving an Idaho project,
overturned a 2-1 decision from 2005 in "Ecology Center v. Austin."
McNair and Austin are the forest supervisors for the Idaho Panhandle
and Lolo national forests, respectively.

The dramatic ruling concluded by suggesting that the Ninth should weigh
other public interests in the future, not just claims of potential
environmental damage.

"Though preserving environmental resources is certainly in the public's
interest, the [Idaho Panhandle] Project benefits the public's interest
in a variety of other ways," the ruling stated. "According to the
Forest Service, the Project will decrease the risk of catastrophic
fire, insect infestation, and disease, and further the public's
interest in aiding the struggling local economy and preventing job
loss."

The US Forest Service's mission is a mixed bag, requiring it to balance mining, timber harvesting, recreation, and environmental preservation on its lands. Such a mixed mission is virtually doomed to failure in today's political climate. This virtually impossible balancing act has been made more difficult with the recent explosion of lawsuits from environmental groups all attempting to narrow the USFS mission to preservation alone, to the exclusion of other missions. The 9th Circuit has to date been a leading facilitator of this process of placing preservation ahead of all other goals, in direct contradiction of the will of Congress in any number of pieces of legislation.

And for some reason that nobody seems to be able to understand, the local economies have not adjusted structurally to the new economic reality. I wonder why?

Of the
county's general fund, a full 67 percent -- about $12
million -- had come from the federal timber payments.

Finally, it looks like Congress may cut them off. Good. Because the only thing worse than killing an industry for suspect environmental reasons is continuing to pay that industry for not producing anything.

Anyway, as we were reading our guide the other day in our hotel room, planning the next day, my wife happened on the Q&A section where a reader asked him "What is your favorite Florida attraction?" His answer:

What attracts me most (as opposed to my favorite attraction) is Juniper Springs, a stunningly beautiful stream about one and a half hours north of Orlando in the Ocala National Forest....Winding through palm, cypress, and live oak, the stream is more exotic that the Jungle Cruise and alive with birds, animals, turtles, and alligators.

This is part 3 in a series of my real-world experience in dealing with the Department of Labor (DOL). If you have not already, you should also check out part 1 and part 2 for background.

In this post, I will show you how we defended ourselves in a case where the DOL was extremely reluctant to grant us a legal exemption to the Fair Labor Standards Act (FLSA). It is highly unlikely that this exemption is relevant to you - it is narrowly directed at seasonal recreation businesses, but I think the process and what we learned from it may help you out in your own interactions with the DOL.